Labour Code+ and IHRA – the caveats already in place and what else is needed

As the SKWAWKBOX published last night, the voting balance on Labour’s National Executive Committee (NEC) is such that it is effectively certain that the 4 September NEC meeting will vote to incorporate all eleven examples attached to the IHRA (International Holocaust Remembrance Alliance) ‘working definition’ of antisemitism into Labour’s Code of Conduct.

The existing version of the Code references all the examples and actually strengthens some – but clarifies the application of a small number considered to be dangerous to free speech, particularly on Palestine, and to the right of Palestinians to define their own terms in discussing their oppression. It has been greeted as a gold standard of political documents on the topic by some – and attacked by pro-Israeli groups for not incorporating all the examples verbatim.

Those who have concerns about the impact of the full inclusion of all eleven examples, either as an appendix or in the body of the code, fear – justifiably – that the incorporation of all the examples without adequate caveats will immediately trigger an avalanche of politically-driven complaints by right-wingers eager to purge opponents from the party.

Understandably, they want to know what would be in the ‘Code Plus’ – a new version of the Code of Conduct with all the examples but with existing protections maintained or strengthened. But the short answer is that it’s not yet fixed – until the NEC debates and votes on it in a couple of weeks’ time.

But to understand what a new Code – ‘Code Plus’ – is likely to look like, the existing Code and its protections are a good place to start.

IHRA text not a legal definition – on its own

The Code points out, as does the IHRA ‘working definition’, that the latter is not a legal definition – on its own, without clarifications, it cannot be used as a legally-enforceable document. Though of course this hasn’t prevented some from trying, Labour’s Code is more suitable:

IHRA examples and the Code both mandate: context is key

Those opposed to the adoption of the remaining IHRA examples might easily be unaware of it, but the IHRA text itself specifies that its examples are not absolute – they are dependent on context.

This has often been ignored by those determined to exploit them as absolutes – and the caveats in the existing Code have been attacked as if the IHRA does not specify that the examples only might be of antisemitic behaviour, subject to context.

But it does – and an honest use of the ‘working definition’ requires that this be acknowledged. Labour’s Code does:

Even in the first version of the Code, no absolute application can be legally justified – however much right-wingers might wish otherwise.

Also important is that the Labour Code makes explicit what the IHRA definition actually omits – that antisemitism is hatred or prejudice toward Jewish people because they are Jewish.

Israel can be criticised

The existing code protects free speech on Israel, while rightly ruling out behaviour where there is evidence of antisemitic intent – the ‘context’ mentioned in the introduction to the IHRA examples.

What needs to be strengthened?

While the existing Code already stands far above anything implemented by other political parties and contains provisions to protect free speech and guide members on the limits of acceptable behaviour that do much to mitigate the potential dampening effect on free speech and on the rights of Palestinians, the protections are incomplete and in some cases less than perfectly clear.

Labour activists have identified some key areas that need to be strengthened or made more explicit.

No retrospectivity

A key concern of Labour supporters of Palestinians and their right to self-determination is that the day after the inclusion of the additional verbatim examples, the Labour right will launch a huge programme of complaints designed to sideline or expel larges numbers of its opponents.

There is much justification for this fear, as numerous troll accounts and individuals have already spent considerable time trawling the social media feeds of pro-Palestinian members for every tweet or comment that could possibly be construed to support a complaint – and in some cases, evidence has been fabricated to discredit opponents.

Clear principles of law and natural justice make it clear that no rule or law can be applied to events that happened before the rule was in place – so in reasonable times no explicit mention should be needed that the Code of Conduct cannot be used to penalise behaviour or comments that took place before it was in place.

But these are not reasonable times – the revised Code must state explicitly that no past behaviours fall under its provisions.

And if those calling for the adoption of the remaining examples genuinely want them in place for the protection of our Jewish members and population – rather than for political purposes or score-settling – they will also fully back an explicit ban on retrospective application of the Code. Protection is only needed against what might happen going forward, not from what is already past.

The Supremacy of Human Rights legislation

The revised Code must make clear that none of its text, its Appendices and Supporting Documents, its meaning, or any interpretation or application may compromise the rights and obligations established by the Human Rights Act. This will ensure that legally-protect freedom of expression within the Party is no less than what is guaranteed by the law in the UK as a whole.

Select Committee caveats – extended

The Commons Home Affairs Select Committee issued caveats it felt must be applied to the IHRA ‘definition’ and examples for it to work justly in relation to criticism of the actions of the Israeli government. These are broadly reflected in the existing Code and the existing Code addresses discussion of ‘Zionism and Zionists’ – but activists believe they need to be strengthened to ensure they apply to criticism of the Israeli state and to Zionism as an ideology as well as to the government and its policies or actions.

In addition, the IHRA examples have already been used by Barnet council to ostracise as inherently antisemitic every individual or organisation supporting BDS – the ‘boycott, divestment and sanction’ campaign to support Palestinians by boycotting goods made, and companies active in, illegally-occupied territories.

The current Code is unclear on the issue and should contain a clear statement on the validity of the campaign. As Unison, GMB and other unions officially support BDS, there should be ample support on the NEC for the inclusion of a positive statement in the updated Code.

Internal consistency

Highly-regarded barrister Hugh Tomlinson QC has identified aspects of the eleven ‘contemporary examples’ that could “appear to condemn as antisemitic conduct which does not constitute or manifest hatred or intolerance against Jews“, while the code itself states that antisemitism “is a certain perception of Jews, which may be expressed as hatred toward Jews.”

In case of disciplinary hearings or legal dispute, such a contradiction could mean that both plaintiff and defendant could claim justification from the code with equal strength, making any judgment dependent on the subjective opinion of the panel or court.

To resolve this problem, Tomlinson states that the definition itself must always be considered superior to the examples in case of any conflict:

In summary, therefore, it is my view that
(2) The “examples” accompanying the IHRA Definition should be understood in the light of the definition and it should be understood that the conduct listed is only antisemitic if it manifests hatred towards Jews.

Penalties for abuse

This is perhaps the most controversial of the provisions that many consider need to be included in ‘Code Plus’ – but is a clear necessity in view of the risk of politicised exploitation of the Code and/or examples.

In law, making a false, vexatious accusation carries penalties to discourage such behaviour.

Given the highly-charged atmosphere prevailing, no individuals or faction must feel they can fire accusations at preferred targets without proper justification or with impunity if they are vexatious.

An accusation of antisemitic behaviour – and even more so a judgment confirming it – is a serious and potentially lifelong stain on a reputation, For the protection of members against the use of accusations as a political weapon, vexatious accusations must involve a penalty – and in view of the seriousness of the accusation, that penalty should be severe if an accusation is found to be genuinely vexatious.

Disciplinary processes in this area cannot be a one-way street.

Comment:

If Labour members feel that the rights of the oppressed and of members are properly protected by a Code that includes all of the IHRA ‘contemporary examples’, they can – and most will – back it wholeheartedly. ‘Code Plus’ is therefore an opportunity for a meeting of genuine minds on both sides of the IHRA debate.

The voting arithmetic on the NEC effectively guarantees that the remaining examples will be adopted – but many NEC members who intend to support that adoption also support retained and strengthened protections and clarifications.

Labour members will therefore do far better to direct their energies into lobbying their union or member representatives on the NEC to back these examples than in trying to prevent the IHRA examples being adopted.

And if those calling for their adoption genuinely have the protection of Jewish people at heart, they will do the same.

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29 comments

My hurt feelings aren’t worthy of mention, much less of enforced consideration by the party while so many suffer under Tory misrule.

It’s a question of priorities.

If I think my hurt feelings are more important than saving children from hunger and homelessness then I’m obviously in the wrong party and I should fuck off and join the Tories where I belong.

Either “Go to the Police” or “Jeremy’s busy. Submit it and we’ll deal with it when there’s time” should be the response to my selfishly wasting the party’s time with my complaints while Tories inflict yet more hardship on the vulnerable.

Serious matters are for the Courts – where evidence is required and vexatious false accusations can be adequately dealt with.

‘Serious matters are for the Courts – where evidence is required and vexatious false accusations can be adequately dealt with.’

Spot-on. Vexatious allegations, made by you-know-who. If they’re gonna make them, they ought to back them up with evidence or defend them in court because it’s about time the party fought back and started suing them for defamation/libel/slander – instead of fannying around and apologising at the drop of a hat and exacerbating the farce and perpetuating the myth. .

if I had a penny for every time that now-hoary old bit of Voltaire (and nothing else by him) was wheeled out usually by some person on the Right defending “free speech” in nasty circumstances, and the quote always as if used for the first time – if I had a penny for that I would probably have about 45p by now.

– but that would rule out HRA in any ensuing court cases. I am sorry, but there are insufficient levels of trust to allow NEC+. It would be a MAJOR problem, if the NEC caved in, and went for that. Please see Jonathan Cook, or Tony Greenstein.

And we are still in the major disputes of both Jackie Walker and Marc Wadsworth, which could indicate a much deeper and possibly more prevalent form of racism …

If the Israeli government is doing things which are similar to things that the Nazis used to do, then I really don’t see why Labour members shouldn’t have the right to point that out.
It’s this automatic assumption that some comparisons involving Israel are anti-Semitic which bothers me.
Israel is a multi-cultural country with a multi-cultural government, so I fail to see how criticising the actions of that multi-cultural government can be anti-Semitic, when I am also criticising the actions of the Muslim and Christian members of that government.
I wouldn’t have a problem with treating comparisons between the Jewish people and the Nazis as anti-Semitic, but Israel should be treated like every other country and be open to criticism. It’s a fine, but important, distinction, and it’s one that the Labour party appears to be close to ignoring.
And if any other country is confiscating land to build Jewish-only settlements on, or using snipers to shoot large numbers of unarmed protesters dead, then I’ll criticise them as well.

“If the Israeli government is doing things which are similar to things that the Nazis used to do, then I really don’t see why Labour members shouldn’t have the right to point that out.”
This is yet another example of both the poor grounding of so many Left Wingers in historical fact and socialist analysis, and of the depth of anti Semitic memes in our culture, which the lazy use of casually applied terms and references repeatedly feeds on , knowingly, or unknowingly.

The Nazis deliberately murdered 6 million Jews across Europe, utterly destroying a minority European cultural community dating back well over a thousand years , during WWII , powered ideologically as a justification by over a thousand years of anti-Semitic scapegoating tropes and memes , deeply embedded in the culture of “Christian” Europe, but given a capitalist era makeover with the “Jewish Banker/Bolshevik Conspiracy” narrative. The Nazis also murdered many more millions of the disabled, gypsies, gays, and other ethnic minorities, as they cleared vast areas of conquered land for ethnic German settlement. Unfortunately there is nothing specifically “Nazi” about any of this, as even a cursory review of European colonisation and extermination of native peoples in North and South America, Australia, Africa, New Zealand and Tasmania, just as examples, would show.

So to select “Nazi” as a explanatory description of Israeli violence and land evictions against the Palestinians , is both remarkably insulting to the children of the Jewish victims of European Nazism, but also has no useful explanatory value – just being a lazy term of abuse . But in addition, given the widely distributed anti-Semitic narratives put about since the WWII Holocaust by anti-Semites of many kinds, from outright fascist Holocaust deniers or minimisers to outright justifiers (ie, “they got what the deserved”) , it is not only of no useful analytical value, it is also far too politically dodgy to apparently align oneself, as a socialist internationalist, even tangentially, with any of the anti-Semitic narratives . Better therefore for the Left to simply condemn the Israeli Government from its many disgraceful policies and its many crimes against the Palestinians, WITHOUT the lazy and historically worthless , employment of comparative references to” Nazism” . The very Nazi mass murderers, whose WWII Holocaust of European Jewry is directly responsible for the creation of the state of Israel, from the mass migration of Jewish survivors of one of the truly epic mass murders in our unfortunate human history.

The consequence of this failure to grasp the difference between opposing specific Israeli policies and actions and descending into the adoption of outright anti-Semitic memes should be obvious to anyone who has been on pro-Palestinian demonstrations during the various Israeli military incursions into Gaza of the last decade. Innumerable photographs exist of London demos to show the carrying of many, many, placards stating “Hitler was Right” and other offensive anti-Semitic slogans by demonstrators , and the carrying of the black flags of the clerico-fascist Islamic death cult, Daesh , completely unmolested by other participants on the demonstrations ! This is what happens when socialist analysis and socialist principle is overwritten by superficial comparisons and lazy use of “dog whistle” anti-Semitic memes.

“Innumerable photographs exist of London demos to show the carrying of many, many, placards stating “Hitler was Right” and other offensive anti-Semitic slogans by demonstrators , and the carrying of the black flags of the clerico-fascist Islamic death cult, Daesh , completely unmolested by other participants on the demonstrations”

And from this (if true) you deduce what exactly? That Fascism is on the rise and Jews are again threatened, this time from the Left?
All demonstrations attract those with other agendas, placards are cheap and photographs selectively tell the story the rag proprietor wants to tell.

I’d suggest that the “failure to grasp the difference” might be yours – the difference between hatred-inspired insult and attempts to persuade Israeli politicians that the Holocaust’s victims would recognise and be appalled by Israel’s actions today.

Estimates of deaths in WWII vary between 50 and 80 million.
Many of us lost relatives – is our pain less?

“Disabled, gypsies, gays, and other ethnic minorities” were certainly co-victims of Nazism yet don’t seem welcome in the state formed out of that tragedy.
Israelis seem strangely reluctant to share even a square inch of it in fact, even with its Palestinian owners.

‘jpenney’ Despite ‘advising’ us on the best way to criticise Israel, your continued defence of the vicious, apartheid State of Israel, is wearing a bit thin. For goodness sake, even some Jews and Israeli politicians are comparing some of Israel’s actions with those of the Nazis.

“This is yet another example of both the poor grounding of so many Left Wingers in historical fact and socialist analysis”

What a cheek! talk about poor grounding in historical fact, you’ve even had the nerve to again equate the founding of Israel with the Holocaust when the two have nothing to do with each other. The idea to set up a Jewish State and eject the indigenous population began in 1867 at the Zionist Council, it was a project of Jewish Nationalism, way before the Holocaust and it is still going on today. You are continuing to pedal Zionist myths and excuses by disgracefully weaponising the Holocaust. So save us pseudo analytical clap-trap.

I am Jewish, so I know what anti-Semitism is, but thanks for the overly-wordy lecture anyway.
Nobody has a right to not be offended. If robust criticism of Israel offends someone, that’s a shame, but it doesn’t invalidate the criticism.
As Sir Stephen Sedley said*:

“both Jews and non-Jews in the UK are entitled, without being stigmatised as antisemites, to contend that a state that by law denies Palestinians any right of self-determination is a racist state, or to ask whether there is some moral equivalence between shooting down defenceless Jews in eastern Europe and unarmed Palestinian demonstrators in Gaza.”

If Israel doesn’t want to be compared to the Nazis, then they should stop doing similar things to them. If they don’t want to be called a racist state, then they can make their laws apply equally to all.

Well said Dave G ,Jack T and David McNiven and I also agree with some of the points made by Tom Older further below , a sobering thought for all concerned in the niceties of this debate.

Since the start of the year, more than 200 Palestinians have died by fire from the Israeli military and armed civilians, more than than 180 of them in Gaza. At least 125 have been killed during Gaza’s Great March of Return protests.

The usual, slippery self-justifying replies from Dave.G, David McNiven, and Jack T , and rob, eloquently illustrates that we do indeed have a continuing real problem on the Left with arrogant and insensitive, and politically and historically ignorant use of language and analogies which feed directly from the anti-Semitic memes and selective historical “narratives” spread by the genuinely anti-Semitic Far Right , and the clerico-fascists of Islamic fundamentalism. A tragic state of affairs – but unfortunately the history of the European Left has always been scarred by what in the late 19th century was already a common saying in German Social Democracy , ie, “Anti-Semitism is the Socialism of fools”.

And Yes, I would hope and expect socialists to tear down placards on a pro-Palestinian Demo which said “Hitler was Right” – AND to try to exclude supporters of the totalitarian , women oppressing, gay-hating, clerico-fascists of Daesh with their distinctive black flags – just as I would hope a banner wielding contingent from the EDL or BNP would be excluded.

The very much minority political Zionist dream of a separate Jewish state arose in the 19th century out of the continuation of over a thousand years of brutal oppression, and periodic pogrom mass murder of Jewish communities across Europe, and particularly in the 19th century onwards, Eastern Europe . Until the WWII Holocaust the Jewish establishments, and most ordinary Jews had little interest in the “Jewish homeland” political Zionist position. Only the death of 6 million European Jews in the Shoah , and the utter destruction of the ancient Jewish communities of Europe created the utter despair in the survivors to risk huge hardships to emigrate (directly from the liberated death camps in the early post 1945 waves) to Israel. Because the survivors had nowhere else to go (many survivors trying to return to their villages in postwar Poland were murdered by fellow Poles !)

David McNiven obviously thinks it is a clever riposte to say :

“Estimates of deaths in WWII vary between 50 and 80 million.
Many of us lost relatives – is our pain less?

“Disabled, gypsies, gays, and other ethnic minorities” were certainly co-victims of Nazism yet don’t seem welcome in the state formed out of that tragedy.
Israelis seem strangely reluctant to share even a square inch of it in fact, even with its Palestinian owners.”

I don’t know if your personal family loss in WWII equates to the utter destruction of your entire extended family, and entire ethnic community, David ? Or that your family losses also included the impossibility of returning to your ancestral villages because those properties now belonged to relatives of your dead relative’s murderers – as was the case across Europe for Jews ? If not I suggest you feel rather embarrassed at you sheer gall in claiming equal suffering ! With the possible exception of the almost exterminated Gypsy communities of Eastern Europe, who’ve never heard ever wanted to move to the Middle East with Jewish refugees, the disabled of Europe were simply dead, and surviving gays and Polish and Russian slave workers just returned home . So your snide comment is historically worthless , as well as appallingly hate-filled in its indifference towards Jewish Holocaust survivors.

Until the self-righteous ,self-identifying “left wingers ” like the above either learn to moderate their use of “dog whistle” language and exhibit at least some awareness of the complex historical factors that led to the creation of the modern state of Israel on land seized by force ,(and of course simply bought prior to 1948) from the Palestinian People ( as also was the different but analogous case of course with the ancient ancestral German territories of East Prussia that much of modern Poland is sited on, after the forced expulsion of millions of ethnic Germans), we will never win back the confidence of our small but very long-standing UK Jewish community.

‘jpenney’ I’d give up If I were you, the spiel you have just made is typical of Zionist efforts to drag the argument away from the subject, which I remind you is the smears of the RW/Zionists on Jeremy Corby to prevent him from ever becoming PM and the insistence that Labour adopts that dicredited IHRA definition plus examples.

The more you try this subterfuge the more you will focus attention on the loathsome actions of the Zionist terrorists who established the State of Israel.

Take this comment you made to David;

“I don’t know if your personal family loss in WWII equates to the utter destruction of your entire extended family, and entire ethnic community, David ? Or that your family losses also included the impossibility of returning to your ancestral villages because those properties now belonged to relatives of your dead relative’s murderers”

You probably don’t even have the self awareness to realise that it’s an exact description of the catastrophe inflicted on the Palestinians by the Zionists and it’s still in operation to this day as you and the world look on.

Pack it in ‘jpenney’ while you’ve at least got one foot left to shoot.

eg “All Labour Party polices and procedures (past and present) must be compliant with the principles of the Human Rights Act (even if re-appealed) and the European Convention on Human Rights”.

The anomaly and irony is that Labour MPs, councillors and MEPs propose and implement polices and legislation which have to be compliant with the Human Rights Act (HRA) but appear not to apply the same principles to the running of the Labour Party.

I wonder how many and which MPs (or now Mayors) voted or supported the Human Rights Act are now calling for the IHRA definition to be adopted without qualification or safeguards? That would be an interesting analysis. Chukka Umuna I’m sure as a lawyer would have been a vociferous supporter. And Sadiq Khan as a lawywer and former member of Liberty also. Their selective application or silence on the HRA undermines their political stature. Did Margaret Hodge vote for the HRA?

The ECHR was introduced post-WW2 not only to counter the threat of Soviet dictatorship but also to thwart European democratic socialism, hence its ‘right to the peaceful enjoyment of one’s possessions’ which remains a potent weapon for firms to frustrate the expansion of public ownership and to consolidate capitalism.

During the negotiations the 1945 Labour government fresh from its nationalisations was extremely sceptical and tried to trim the ECHR’s sails at every turn, without long-term success. Until it fell victim to the neoliberal tsunami the Labour Left opposed the expansion of judicial power which the HRA/ECHR represents.

We can have our own statement of free speech, the right to offend and all in our rules without bowing the knee to judicial empowerment and supranational capitalism. Let’s junk liberalism and embrace democratic socialism instead.

You got a load of that wrong. The ECHR negotiations did not begin until the Council of Europe was formed in 1950. The ECHR itself came into force in 1953.

In the 1950 GE Labour was reduced to a majority of 5. In the 1951 GE Labour lost and Winston Churchill came back into power.

The bulk of the ECHR negotiations were done outside a period of Labour Government. Some of the rights and caveats were probably influenced by the fact it was the Tory MP David Maxwell-Fyfe QC who headed the drafting committee.

I would however still take the view the main purpose of the ECHR was to impose a supra national system of rights in order to protect against the potential problem that the abuses of the Nazi’s were all done within the rule of law. By creating a supra national legal construct to guarantee basic human rights the concept was that a rogue nation could not go down such a path within the rule of law because it would breach international legal obligations. It is a backstop for attempting to prevent national excess.

I don’t think it had anything to do with the Soviet Union either. I am also unaware of any ECHR cases that have protected corporate rights in relation to property because it doesn’t apply to corporate bodies and they have no right to seek enforcement of any ECHR rights as they are not ‘human’. However if you know of some happy to have a look myself.

Sanctions against frivolous and vexatious complainants can only kick in where the investigation results in an acquittal, surely.

So, does a problem lie with time-waste acquittals? I would have thought the problem was unjust ‘convictions’.

Also, such a reform would remove the McPherson principle whereby decision-makers defer to a victim’s interpretation of discriminatory behaviour when deciding whether to launch an investigation, something that would surely have to apply to complaints regarding all ethnicities not just Jewish.

Absolutely. Even with this code plus whatever, hairtrigger “trope” hunting will be a fulltime occupation for many; and Hodge’s outrageous “thin line between supporting Palestine and anti-Semitism” will be strengthened by the absolute interdict on “abuse” (a subjective term which can have class-cultural differences in vocabulary) so an “agreed draw” proportion of collateral damage expulsion is likely; this on the charge of “abuse” or “bringing the party into disrepute” when it is “Antisemitism” which has been the charge made.
I don’t need a lawyer’s bill to teach me what anti-semitism is, or whether I or anyone has been antisemitic. I really don’t need to prove to anyone that I don’t hate Jewish people. If I did, it would be obvious. No, it is not some thing that a little weasel word shows you secretly want to commit genocide on six million people. The only publicly obvious and instantly recognisable piece of antisemitism in all this nonsense has been the PR inserted “The Many Not the Jew” placard held at the Enough is Enough demo outside Westminster. Held and held to be photographed, by anti-Corbyn protesters.
What is subtly or not so subtly happening here is that what is deemed “abusive” in tone to a pro Israel or Jewish member is sought to be treated as “Anti-semitism” ie the driving hatred leading to the genocide of 6 million people. So expuslon.
Bollocks. People verbally roughcall each other, or as the suited people now call it, “use robust language” on a daily basis. OK I go with Jeremy on outlawing it. He is following as he always has, the injunction of the mass assembled protesters in Shelley’s post-Peterloo “Masque of Anarchy” to simply stand, take the attack, the attackers will be defeated by shame. Well, such example is another reason I follow Corbyn. But I could not follow this committee redherring IHRA stuff.